American Indian Sovereignty and Law: An Annotated Bibliography (Native American Bibliography Series)

649 Pages·2009·2.61 MB·English

by  Wade Davies

Native American Bibliography Series
Advisory Board: Brenda Child, University of Minnesota, Minneapolis • R. David Edmunds, Texas Christian University •
Arlene B. Hirschfelder, Teaneck, N.J. • Karl Kroeber, Columbia University • A. Lavonne Ruoff, University of Illinois,
Chicago • Emory Sekaquap-tewa, University of Arizona • Virginia Driving Hawk Sneve, Flandreau, S.D. • Clifford E.
Trafzer, University of California, Riverside
General Editor: Michael Tate, University of Nebraska at Omaha
No. 1 Bibliography of the Sioux, by Jack W. Marken and Herbert T. Hoover. 1980
No. 2 Biobibliography of Native American Writers,1772–1924, by Daniel F. Littlefield, Jr., and James W. Parins. 1981
No. 3 Bibliography of the Languages of Native California, by William Bright. 1982
No. 4 A Guide to Cherokee Documents in Foreign Archives, by William L. Anderson and James A. Lewis. 1983
No. 5 A Biobibliography of Native American Writers,1772–1924:Supplement, by Daniel F. Littlefield, Jr., and James W.
Parins. 1985
No. 6 Bibliography of the Osage, by Terry P. Wilson. 1985
No. 7 A Guide to Cherokee Documents in the Northeastern United States, by Paul Kutsche. 1986
No. 8 In Pursuit of the Past:An Anthropological and Bibliographic Guide to Maryland and Delaware, by Frank W.
Porter III. 1986
No. 9 The Indians of Texas:An Annotated Research Bibliography, by Michael L. Tate. 1986
No. 10 Bibliography of the Catawba, by Thomas J. Blumer. 1987
No. 11 Bibliography of the Chickasaw, by Anne Kelley Hoyt. 1987
No. 12 Kinsmen through Time:An Annotated Bibliography of Potawatomi History, by R. David Edmunds. 1987
No. 13 Bibliography of the Blackfoot, by Hugh A. Dempsey and Lindsay Moir. 1989
No. 14 The Upstream People:An Annotated Research Bibliography of the Omaha Tribe, by Michael L. Tate. 1991
No. 15 Languages of the Aboriginal Southeast:An Annotated Bibliography, by Karen Booker. 1991
No. 16 Yakima,Palouse,Cayuse,Umatilla,Walla Walla,and Wanapum Indians:An Historical Bibliography, by Clifford E.
Trafzer. 1991
No. 17 The Seneca and Tuscarora Indians:An Annotated Bibliography, by Marilyn Haas. 1994
No. 18 The Native American in Long Fiction:An Annotated Bibliography, by Joan Beam and Barbara Branstad. 1996
No. 19 Indigenous Languages of the Americas:A Bibliography of Dissertations and Theses, by Robert Singerman. 1996
No. 20 Health of Native People of North America:A Bibliography and Guide to Resources, by Sharon A. Gray. 1996
No. 21 A Bibliography of the Indians of San Diego County:The Kumeyaay,Diegueño,Luiseño,and Cupeño, by Phillip M.
White and Stephen D. Fitt. 1998
No. 22 Indian Slavery,Labor,Evangelization,and Captivity in the Americas:An Annotated Bibliography, by Russell M.
Magnaghi. 1998
No. 23 Diné Bibliography to the 1990s:A Companion to the Navajo Bibliography of 1969, by Howard M. Bahr. 1999
No. 24 Native Americans in the Saturday Evening Post, by Peter G. Beidler and Marion F. Egge. 2000
No. 25 The Native American in Short Fiction in the Saturday Evening Post:An Annotated Bibliography, by Peter G.
Beidler, Harry J. Brown, and Marion F. Egge. 2001
No. 26 The Shawnee Indians:An Annotated Bibliography, by Randolph Noe. 2001
No. 27 The Native American in Long Fiction:An Annotated Bibliography,supplement 1995–2002,by Joan Beam and
Barbara Branstad. 2003
No. 28 The Pawnee Nation:An Annotated Research Bibliography,by Judith A. Boughter. 2004
No. 29 American Indian Sovereignty and Law:An Annotated Bibliography, edited by Wade Davies and Richmond L.
Clow. 2009

American Indian Sovereignty
and Law
An Annotated Bibliography
Edited by
Wade Davies
Richmond L. Clow
Native American Bibliography Series, No. 29
The Scarecrow Press, Inc.
Lanham, Maryland • Toronto • Plymouth, UK
2009
SCARECROWPRESS, INC.
Published in the United States of America
by Scarecrow Press, Inc.
Awholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc.
4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706
www.scarecrowpress.com
Estover Road
Plymouth PL6 7PY
United Kingdom
Copyright ©2009 by Wade Davies and Richmond L. Clow
All rights reserved.No part of this publication may be reproduced,
stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of the publisher.
British Library Cataloguing in Publication Information Available
Library of Congress Cataloging-in-Publication Data
American Indian sovereignty and law : an annotated bibliography / edited by Wade Davies, Richmond L. Clow.
p. cm. — (Native American bibliography series ; 29)
Includes bibliographical references and index.
ISBN-13: 978-0-8108-6235-7 (cloth : alk. paper)
ISBN-10: 0-8108-6235-2 (cloth : alk. paper)
ISBN-13: 978-0-8108-6236-4 (ebook)
ISBN-10: 0-8108-6236-0 (ebook)
1. Indians of North America–Legal status, laws, etc.–United States–Bibliography. 2. Indians of North America–United States–
Government relations–Bibliography. I. Davies, Wade, 1969– II. Clow, Richmond L.
KF8201.A1A44 2009
016.3427308'72–dc22 2008030685
(cid:2)™
The paper used in this publication meets the minimum requirements of
American National Standard for Information Sciences—Permanence of
Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.
Manufactured in the United States of America.
Contents
Editor’s Foreword vii
Introduction ix
1 Overviews of Law and Sovereignty 1
2 Twentieth-Century Sovereignty Overviews—Tribally Specific 23
3 Treaties, Land Sales, and Treaty Rights 31
4 Nineteenth-Century Removal and Resettlement 51
5 Reservation Policy: Establishment, Diminishment, and Disestablishment 63
6 Land Allotment and Land Consolidation 69
7 Twentieth-Century Federal Indian Policy 79
8 Indian New Deal 87
9 Sovereign Status, Termination, and Recognition 95
10 Self-Determination and Tribal Assumption of Federal Programs 107
11 Twentieth-Century Activists and Reformers 111
12 Trust Status, Guardianship, and Trust Funds 121
13 Federal Plenary Power 127
14 Tribal Governance, Constitutions, and Leadership 131
15 Tribal–State Relations 153
16 Sovereign Immunity 157
17 Tribal Law and Legal Codes 161
18 Tribal Courts and Dispute Resolution 169
19 Federal and State Courts 179
20 Marshall Trilogy 189
21 Federal–State–Tribal Court Relations 193
22 Attorneys, Legal Aid, and Law Associations 201
23 Law Enforcement Agencies 207
24 Criminal Justice and Prisoners’Rights 211
v
vi Contents
25 Jurisdiction Overviews and Regulatory Powers 225
26 Criminal Jurisdiction 239
27 Land Law and Property Rights 251
28 Land Claims and the Indian Claims Commissions 269
29 Religious Freedom 289
30 Peyote and the Native American Church 299
31 Sacred Sites Protection 307
32 Cultural Items and Ancestral Remains 317
33 Intellectual Property, Artists’Protections, Free Speech, and Mascots 335
34 “Indian” Identity, Tribal Enrollment, and U.S./State Citizenship 341
35 Voting and Lobbying 351
36 Civil Rights Legislation, Litigation, and Individual Rights 355
37 Racial Discrimination, Exclusion, and Hiring Preference 363
38 Economic Development and Labor Relations 367
39 Agriculture and Livestock 393
40 Timber Resources 397
41 Water Law 401
42 Fishing, Whaling, Hunting, and Gathering 431
43 Mineral and Oil Rights and Environmental Issues 451
44 Environmental Protection and Natural Resource Management 465
45 Gaming 479
46 Taxation 503
47 Family Law and the Indian Child Welfare Act 517
48 Poverty, Housing, Welfare, and other Social Services 527
49 Health Care: Twentieth-Century Policy and Patient Rights 531
50 Education: Twentieth-Century Policy and Lawsuits 535
51 Alcohol, Drugs, and Tobacco Regulation 539
52 Urban and Off-Reservation Populations 543
53 Women’s Rights and Issues 547
54 Alaska Natives 551
55 International Law, Borders, and Comparative Studies 567
56 Special Topics 577
57 Bibliographies and Research Collections 587
Author Index 591
Subject Index 617
About the Author 635
Editor’s Foreword
In a 1972 address to an audience of scholars and interested by many constituencies. First and foremost, academic re-
laypeople, celebrated Lakota author Vine Deloria, Jr. ques- searchers will be able to identify and evaluate the published
tioned the continued public fascination with nineteenth- materials that are essential to their future studies. Likewise,
century topics, most notably the unwarranted focus on mili- attorneys will locate the court cases and interpretive essays
tary battles between Indians and whites. Deloria further that are most relevant to their own legal presentations. Fi-
argued that detailed battlefield studies were not the most nally, Native American tribes and individual tribal members
representative examples of intercultural relations for that will find the most pertinent publications that can help them
era, nor do they speak to the crucial issues confronting Indi- structure social programs, exercise sovereign rights, and
ans and whites today. Fittingly, he called upon historians, promote cultural and economic revival. Annotations
anthropologists, and public policy makers to shift their at- throughout the book are detailed and thematic enough that
tention to twentieth-century topics, and especially to a host the researcher will be able to understand the nature of the
of legal issues that constitute the arena for the “New Indian publication beyond what a mere title of a book, pamphlet, or
Wars.” article can provide. The extensive Subject Index also pro-
During the ensuing three decades, academicians re- vides individual citation numbers that will lead researchers
sponded to Deloria’s clarion call for a shift in scholarly ef- into related categories so that no source has to be repeated
forts. Not surprisingly, Deloria himself earned a law degree multiple times when it fits into several chapters of the book.
from the University of Colorado and subsequently published The sheer magnitude of research required for this massive
important books and articles about Native American consti- reference work and the great care with which Drs. Clow and
tutional rights, sovereignty, and the structure of tribal gov- Davies have prepared the citations guarantee the utility and
ernments. Journals such as American Indian Law Review, longevity of this unique work. Their Herculean efforts un-
American Indian Quarterly, and American Indian Culture doubtedly will be warmly received by all the constituencies
and Research Journal blanketed their pages with pertinent for whom the work was intended.
articles, as did periodicals as diverse as Harvard Law Re-
viewand Chronicles of Oklahoma. Michael L. Tate
As the numbers of publications exploded to meet the de- Professor of History and Native American Studies
mands of a new generation, so too did the need for well- University of Nebraska at Omaha
designed bibliographical guides that could lead researchers
through the growing maze of resources. Authoritative general
bibliographies by Francis Paul Prucha, as well as individual
volumes in Scarecrow Press’s Native American Bibliography
Series and Indiana University’s Newberry Library Center for
the History of the American Indian Bibliographical Series, an-
swered these needs in grand fashion, but none of these bibli-
ographies specifically addressed the rapidly expanding
sources on federal Indian law and sovereignty issues.
Richmond Clow and Wade Davies, both professors of Na-
tive American Studies at the University of Montana, have
now provided the comprehensive reference tool demanded
vii

Introduction
This project began years ago as an idea to create an annotated often recognized this right to home rule in treaties, while
bibliography on tribal sovereignty and its inseparable connec- states have not, even though the Commerce Clause of the
tions to federal Indian law. The importance of these two con- United States Constitution specifically delegated to the cen-
cepts in the modern era emerged in the 1959 Supreme Court tral government the right to regulate trade between the
decision Williams v. Lee, wherein the court decided that the United States and tribal nations.
state of Arizona did not have jurisdiction over a federally li- American Indian sovereignty has long been assaulted by
censed trading operation. The Navajo courts were deemed to the states in an expanding American nation. This collective
be the proper forum for a dispute between the non-Navajo assault has challenged tribes, forcing Indian leaders to look
trader and Navajo clients, and the high court thereby reaf- to the courts to uphold federal treaty protections. The treaty
firmed tribal sovereignty over reservation affairs and made clause of the U.S. Constitution provides tribes with a hand-
tribal courts integral to the American judicial landscape. Fol- hold in the U.S. government. The Cherokee Nation com-
lowing that decision, questions concerning the scope of tribal pelled Chief Justice John Marshall to act in 1831, when he
sovereignty have multiplied. Many jurisdictional issues that articulated the unique relationship that treaties forged be-
stemmed from tribal treaties, tribal council decisions and fed- tween tribal nations and the United States. His decision in
eral legislation have not been resolved, much to the detriment Cherokee Nation v. Georgia (1831)also created a trust rela-
of Native Americans. Disputes among tribes, states, counties, tionship that permitted the United States to make inroads
and the federal government have since wended their way into tribal sovereignty, thus eclipsing tribal diplomatic au-
through the courts, and through each sovereign’s legislative thority. The federal government likewise endeavored to re-
bodies, as various parties have sought to determine the extent duce tribal sovereignty during its nineteenth-century effort
of tribal sovereignty. to assimilate American Indians. During the mid- to late-
The American nation is a republic with three distinct gov- twentieth century, Congress returned to strengthen tribal
ernments that sometimes work together and at other times sovereignty through the Indian Reorganization Act (1934)
work against each other. The state governments, and their and the Self-Determination and Indian Education Assistance
county and city subdivisions, compose one category of gov- Act (1975), but then changed course again by passing the In-
ernment; the United States Congress and the federal court dian Gaming Regulatory Act (1988) which required tribes to
system comprise a second; and the various tribal councils and sign gaming compacts with states that permitted state regu-
courts compose a third, and no less important, category. In lation of tribal Class III games of chance. These fluctuating
this republican structure, the sovereigns, each with different federal policies provided both defenses of and assaults
self-interests, clash over definitions of tribal sovereignty. against tribal home rule, and often opened doors for states,
Tribal sovereignty is a fluid and multi-faceted concept. non-Indian U.S. citizens and even tribal members to attack
This bibliography includes many entries related to differing tribal sovereignty in the courts of different sovereigns.
periods of tribal sovereignty that reveal how difficult a con- This bibliography also focuses on the often contradictory
cept it is to define. In general, tribal sovereignty is an inher- intersection where Indian law runs counter to tribal law, the
ent right of tribal governments to create their own forms of former comprising laws created and enforced by federal and
government and common law and to develop their own eco- state authorities that affect tribal people, and the latter con-
nomic programs. Tribes also possess the right of home rule, stituting laws enacted and enforced by tribal governments
free from outside interference in their governing structures and tribal courts. The complex conflicts among sovereigns
and political and judicial decisions. The United States has over the extent of tribal sovereignty forced the scope of this
ix